Chandran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **CRL.A.No.318 OF 2005** **AGAINST THE JUDGMENT IN SC 134/2002 DATED 12-07-2004 OF ADDITIONAL SESSIONS COURT FAST TRACK (ADHOC 1), KOZHIKODE** ## **APPELLANT/ACCUSED:** **CHANDRAN AGED 36 YEARS S/O.GOPALAN, VALIYAMALA COLONY, KOILANDY, KOZHIKODE.** **BY ADVS. SRI.NIDHI BALACHANDRAN SRI.P.K.MANOHARAN** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR.** **R1 BY PUBLIC PROSECUTOR** **SMT. MAYA. M.N. P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2020, THE COURT ON 12-03-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.318 OF 2005** **2** ## **JUDGMENT** ## **Dated this the 12th day of March 2020** The sole accused in SC No.134/2002 on the file of the Additional Sessions Judge, Fast Track (Adhoc 1), Kozhikkode challenges his conviction and sentence for offence punishable under Section 55(a) of the Abkari Act in a case charge-sheeted against him by the Excise range Inspector, Koyilandy before the Judicial First Class Magistrate Court, Koyilandy. After the trial of the accused, he was sentenced to undergo rigorous imprisonment for 2½ years and to pay a fine of Rs.1,00,000/followed by default sentence of rigorous imprisonment for another six months. 2. The prosecution case against him is that, on 05.08.1997 at 8 a.m, the Excise party consisting of PW1, the Preventive Officer, PW2, the Excise Guard of Excise Circle, Permbra found the appellant to possess arrack in MO1 Can of **CRL.A.No.318 OF 2005** 3 10 litres being transported in a cycle kept on the carrier concealed in MO2 plastic sack. It is said that in the presence of independent witness, the appellant was intercepted and the contents in the Can were examined and found to be arrack. 180 ml of sample was taken in a bottle and the appellant was instantaneously arrested on the spot itself. The labels and seals were affixed on the sample bottle as well as the Can, in accordance with law. Evidencing all these facts, PW1, the Detecting Officer prepared Ext.P2 seizure mahazar. Evidencing arrest, Ext.P1 arrest memo was also prepared by him. The thondi articles and the appellant were then taken to Excise Range Office, Koyilandy and produced before the Excise Inspector, Sri.R.Mohanan, who registered Ext.P3 crime and occurrence report. He produced the appellant under remand report and MOs 1 and 2 incorporated in Ext.P4 property list before the trial court. Later, when the trial of the case commenced, Sri.R.Mohanan **CRL.A.No.318 OF 2005** 4 was reported dead. PW3, the successor Excise Inspector took over the investigation in the case and submitted final report before the JFCM, Koyilandy, from where the case was committed to the Court of Sessions, Kozhikode for trial. 3. When the case was made over the Additional Sessions Judge, Fast Tract, (Adhoc 1) Kozhikode, charge was framed against the appellant for offence punishable under Section 55 (a) of the Abkari Act and on denying the charge, trial commenced. 4.On the side of prosecution, PWs 1 to 4 were examined and Exts.P1 to P5 and MOs 1 and 2 were marked. 5. While the accused was questioned under Section 313 Cr.PC at the end of the prosecution evidence, he claimed to be innocent and contended that some quantity of illicit arrack was seized from the posession of One Narayanan. Instead of Narayanan, the appellant was falsely implicated in the crime. No defence evidence was adduced, **CRL.A.No.318 OF 2005** 5 though he was called upon to enter on defence. 6. The court below after discussing the factual and legal aspects of the case believed the testimonies given by PWs 1 and 2, the two official witnesses to be trustworthy and held that seizure of arrack from the possession of the appellant was satisfactorily proved. Presumption of regularity and correctness of official witnesses was drawn in favour of the evidence given by the official witnesses. The conduct of independent witness to seizure turning hostile was not taken as a material fact affecting the credibility of official witnesses. No delay was also found by the court below in production of material objects before the court and it was observed that negligible delay of two days was not a valid reason for rejecting the persecution case as false. The procedure as to sampling and labeling was also found to have been complied with, in accordance with law. Ultimately, based on Ext.P5 chemical report, the court below came to a conclusion that **CRL.A.No.318 OF 2005** 6 the sample of arrack tested by the chemical laboratory was the same sample which was taken from the arrack found in the possession of the appellant. Ultimately, the impugned judgment of conviction and sentence were passed against the appellant. 7. I heard the learned counsel for the appellant as well as the learned Public Prosecutor. 8. Learned counsel for the appellant submitted that though the court below had discussed many of the factual and legal aspects in support of his view finding the appellant to be guilty, it omitted to take serious notice of the legal impact of non-production of forwarding note allegedly containing the specimen impression of seal used to seal the sample bottle. In this connection decisions of this Court in **Prakasan and another v. State of Kerala** (2016 KHC 96) and **Krishnan v. State** [2015(2) KLT SN 8(C No.11)] were cited before me. **CRL.A.No.318 OF 2005** 7 8. Besides this, it was contended that delay of two days in production of material objects in court cannot be simply rejected as being negligible, in view of the fact that specimen seal impression used to seal the sample bottle was not proved by any records. It was submitted that defence case is probable in view of the testimony of independent witness, PW4 that the seizure was from one Narayanan and the appellant had no involvement in the crime. On these circumstances, the learned counsel sought the impugned order of conviction to be reversed and the appellant to be found not guilty of charge under Section 55(a) of the Abkari Act. 9. The learned Public Prosecutor, on the other hand, sought to maintain the conviction and sentence supporting the logical reasons adopted by the learned trial judge in the impugned judgment. It was contended that the delay of two days was properly explained by prosecution and in the fact **CRL.A.No.318 OF 2005** 8 scenario of the case, the delay did not affect the credibility of seizure. Though it was conceded that forwarding note was not produced, it was argued that in view of the credible evidence of seizure given by the official witnesses, the sample produced in court has been satisfactorily proved as one taken from the MO1 Can containing arrack seized from the possession of the appellant. On the whole, the impugned judgment was supported and the order of conviction was sought to be maintained. 10. It is a fact that the prosecution failed to produce the forwarding note containing specimen seal impression before the trial court. No explanation for non-production has been advanced by the investigating officer. This lacuna in the prosecution case stands still unexplained. In the absence of forwarding note containing specimen seal impression being produced, it is a valid ground to suspect the credibility of seizure inasmuch as the link evidence to connect the **CRL.A.No.318 OF 2005** 9 possessor of contraband liquor with seizure in such a case is wanting. The burden is upon the prosecution to prove that the sample of contraband taken from the possession of the accused was the same sample that reached the committal court and forwarded to the chemical laboratory for examination. This material aspect has not been proved by prosecution in any convincing manner. The intervening delay of two days cannot be simply ignored in this scenario. Even a days' delay is serious in such a situation. This material aspect did not fall to the notice of the court below for consideration and the non-consideration of this serious legal infirmity has vitiated conviction. Added to that, the fact that the Excise Inspector R.Mohanan is not alive to prove the specimen impression of seal alleged to have been affixed on the forwarding note also assumes importance. For all theses reasons, I am of the opinion that the impugned judgment of conviction and sentence cannot be sustained under law and **CRL.A.No.318 OF 2005** 10 it requires to be reversed. The appellant is at least entitled to benefit of reasonable doubt and I therefore, hold him to be not guiltyof offence punishable under Section 55(a) of the Abkari Act. In the result, the appeal is allowed setting aside the judgment of conviction and sentence and appellant is acquitted of offence punishable under Section 55(a) of the Abkari Act and he is set at liberty and his bail bond will stand cancelled. ## **Sd/-** ## **T.V.ANILKUMAR** dlk/12.03.2020 **JUDGE**